In Next Round, Will Disability Rights Be Broadened Further? ; the Supreme Court Sends Six Cases Back to Lower Courts after Its Key Decision Last Week Favoring a Man in a Wheelchair

Article excerpt

George Lane crawled up two flights of stairs to satisfy a judge's order to appear in a second-floor courtroom.

In terms of the fight for disability rights, the imagery of a man leaving his wheelchair behind in order to exercise his constitutional guarantee of access to the courts was stark and brutally effective. It persuaded Justice Sandra Day O'Connor to join forces with the Supreme Court's liberal wing and carve out a new doctrine permitting disabled individuals to sue state governments for money damages whenever discrimination against the disabled interferes with the fundamental freedom of access to the courts.

Yet to what extent the Supreme Court's newly minted protections for the disabled apply to other areas of American society depends on how new cases are decided. This week, the US Supreme Court remanded to the lower courts six cases all involving efforts to hold states accountable for alleged violations of the Americans With Disabilities Act (ADA). In each instance, the case was sent back for further consideration in light of the high court's decision in the Lane case.

Three of the cases involve complaints by disabled inmates in state prisons in New Hampshire, Virginia, and Oregon. Another was filed by a disabled graduate student seeking more permissive test and assignment standards at her state college in Tennessee. A fifth case involves a nursing candidate in Florida with a mental impairment who failed the licensing test because she said the room was too noisy. The last case is a class-action suit challenging a Florida policy of charging a fee for the handicapped parking placard displayed on cars using special-access spots.

In each of these cases, the lower courts must decide whether broader constitutional rights are implicated by the alleged disability discrimination. The judges must also determine whether those rights rise to a high enough level to justify the abrogation of state sovereign immunity, which would otherwise block each of the suits.

A question of access

Arlene Mayerson of the Disability Rights Education and Defense Fund in Berkeley, Calif., says she is hopeful that the courts will expand on the Lane decision and apply the same reasoning to a broader spectrum of disability cases. "Do we have access [only] to fundamental rights, or do we have something more than that?" she says. "It is interesting that the Supreme Court is going to let the lower courts think about that before [the justices] decide to make another move on it."

Samuel Bagenstos, a Harvard Law School professor who has been active in several ADA cases, agrees. …